Lewd, but not too lewd: discipline for off-campus speech probably depends on degree of offensivness

The blog has been off for a while, but now guest blogger Tim Gilsbach, starts off with the first a series of new entries.  This one brings to mind Justice Stewart's remark that he knows pornography when he sees it by showing that offensive speech is, apparently, no less subjective.  For educational agencies, this lack of bright line clarity, means an honest, well-documented, entire-circumstances approach is required for any discipline, and that school lawyers will continue to be busy with speech disputes.  And now, onto Tim's entry. . . .

 In two recent cases, the different federal district courts in Pennsylvania have considered on-line speech by students regarding facility members that occurred off campus, but nonetheless impacted the school setting. However, the courts reached differing conclusions on whether the speech was protected under the First Amendment, leaving school districts to guess when they can or cannot discipline the student for the conduct. A review of these two cases is illustrative of the problem.

First, in the case of Layshock v. Hermitage School District, 496 F. Supp. 2d. 587 (W.D. Pa. 2008), in the Western District of Pennsylvania, a student at home created an on-line parody profile of his high school’s principal on Myspace.com. On the profile, the student attached the principal’s picture, which he copied and pasted from the district’s webpage. The profile also included a question and answer portion of answers the site claimed came from the principal, including answers that indicated that the principal kept a keg behind his desk, smoked a “big blunt” and referenced a “big hard on” as his last date. The profile also described the principal’s sister as a “big whore” and “big steroid freak.” The profile also indicated that the principal was too drunk to remember his own birthday. The profile was shared with other students at the high school and eventually was seen by most, if not all, of the students at the high school. At the same time, there were three other Myspace profiles of the principal that were also unflattering and contained even more vulgar and offensive statements and, apparently, were created by other students. The principal spent a significant amount of time the week of the postings addressing this issues and the resulting disruptions they caused within the school, but could not identify which the four posting he spent time addressing. The student was disciplined for violating various provisions of the student handbook in form of a ten day suspension. 


The Layshock court noted that district could limit speech where it interferes with the learning environment, but noted that it was much more limited in its ability to address speech that occurs outside the school setting or as the court put it outside the school yard. The court went on to explain that when dealing with conduct outside the school setting, the same standard applies as would in the case of any other public official attempts to regulate speech, which imposes strict limits on the ability to regulate. Accordingly, the court held that the speech was protected and, thus, the District violated the student’s rights under the First Amendment by disciplining him.


In the case of J.S. v. Blue Mountain School District, a case decided by the Middle District Court of Pennsylvania, another judge reached the opposite conclusion. 


In J.S., the student created a MySpace profile that indicated the principal was a pedophile and sex addict. Just as in Layshock, the student created this profile outside of school and also used the principal’s picture from the district’s webpage. The student in J.S. was also disciplined and claimed First Amendment Protections. The court started with the proposition that, simply put, lewd, vulgar, indecent and plainly offensive speech are not protected in the school setting. The court further indicated that the difference between off-campus and on-campus speech has become more blurred with advent of the internet and other technology. In addition, the court looked at the Layshock case and explained that the profile in that case was far less vulgar or offensive that the one in the case before it. Thus, the court found the speech was not protected and that the student could be disciplined without offending First Amendment right. 


It is expected that the Third Circuit Court of Appeals will be called upon to sort out these two cases, or similar cases, at some point. However, for now it appears that students are free to be lewd without discipline in this context, so long as they don’t get too lewd, and leaving school personnel to guess when speech is lewd but so lewd as to not be protected speech.